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Report Criminal Law in the Face of Cyberattacks APRIL 2021 REPORT CRIMINAL LAW IN THE FACE OF CYBERATTACKS Working group chaired by Bernard Spitz, President of the International and Europe Division of MEDEF, former President of the French Insurance Federation (FFA) General secretary: Valérie Lafarge-Sarkozy, Lawyer, Partner with the law firm Altana ON I SS I AD HOC COMM CRIMINAL LAW IN THE FACE OF CYBERATTACKS CRIMINAL LAW IN THE FACE OF CYBERATTACKS CLUB DES JURISTES REPORT Ad hoc commission APRIL 2021 4, rue de la Planche 75007 Paris Phone : 01 53 63 40 04 www.leclubdesjuristes.com FIND US ON 2 PREFACE n the shadow of the global health crisis that has held the world in its grip since 2020, episodes of cyberattacks have multiplied. We should be careful not to see this as mere coincidence, an unexpected combination of calamities that unleash themselves in Ia relentless series bearing no relation to one another. On the contrary, the major disruptions or transitions caused in our societies by the Covid-19 pandemic have been conducive to the growth of offences which, though to varying degrees rooted in digital, are also symptoms of contemporary vulnerabilities. The vulnerability of some will have been the psychological breeding ground for digital offences committed during the health crisis. In August 2020, the Secretary-General of Interpol warned of the increase in cyberattacks that had occurred a few months before, attacks “exploiting the fear and uncertainty caused by the unstable economic and social situation brought about by Covid-19”. People anxious about the disease, undermined by loneliness, made vulnerable by their distress – victims of a particular vulnerability, those recurrent figures in contemporary criminal law – are the chosen victims of those who excel at taking advantage of the credulity of others. During the spring 2020 lockdown, some hundred scams registered in France were committed online by individuals posing as business leaders selling stocks of masks. The digital world then has to settle for fending off contemporary examples of classic scam behaviour. The vulnerability of information systems is itself the offspring of digital. Successive lockdowns, by promoting teleworking, telemedicine and distance selling, down to what have become the most mundane acts of everyday life such as contactless payments, have helped to multiply the circumstances that can give rise to the commission of cyberattacks. The defence to these, here as elsewhere, relies on the impossibility of access. Alas! Pirated passwords, uncorrected vulnerabilities, simple human failures (such as inadvertently downloading a trojan) literally open the doors of computer systems. What if all this revealed a structural vulnerability, that of our societies? Bound hand and foot to digital, contemporary societies draw from it what makes them both successful and fragile, in an edifying testimony to the ambivalence of digital. In fact, the Covid-19 pandemic has only exacerbated existing trends. For a long time now the risks of cyberattacks have been well identified, even where they are not already taking place. It should be recalled that the intangible dimension of cyberattacks does not mean they cannot attack, whether directly or indirectly, the bodily integrity or even the life of a person. In 2019, the US Department of Homeland Security warned of vulnerabilities in the radio communication system of certain cardiac defibrillators: if malicious 3 persons took advantage of such vulnerabilities, they could cause the death of a patient. In Germany, a woman in a life-threatening emergency could not be operated on at a hospital because it was being targeted by ransomware affecting around thirty of its servers: the woman died while she was being transferred to another hospital, having been admitted too late. On a larger scale, the combination of cyberattacks and terrorism represents “the” threat of the twenty-first century. In a configuration bringing the two together, “conventional” acts of terrorism such as the killings at the Bataclan could be supported by cyberattacks, for example targeting traffic-light systems: the key element being a total disruption of traffic, hampering the arrival of emergency and security forces. A further step towards dematerialisation and, as cyber war already shows us (think of the hacking of Iran’s nuclear programme by the Stuxnet virus attributed to the NSA, at any rate regarded as the first cyber weapon), we need to keep in mind the spectre of cyberattacks on OVIs, operators of vital importance. But already the link between terrorism and cyberattacks is well established on another level. The financial windfall which results from them, via ransoms or data sales, helps to support terrorist funding networks. Individuals are paying a high price for these attacks, but also and above all businesses. As the prime targets of cyberattacks, businesses of all sizes need to prepare for them and know how to respond when an attack occurs. A comprehensive approach to this issue has been presented to Le Club des Juristes by Valérie Lafarge-Sarkozy, a lawyer and expert of the Club. A commission was set up under the chairmanship of Bernard Spitz, the Ad Hoc Commission on Cyber Risk, bringing together experts from very different fields but whose areas of interest converge on digital. First considering it in terms of risk, a collective reflection by a sub-committee tasked with considering the insurance implications of cyberattacks led to an initial report entitled “Insuring Cyber Risk”, published by Le Club des Juristes in January 2018. As a follow-up to this reflection, another sub-committee was appointed to consider the law enforcement component. Having completed its work, it is delivering this report on “Criminal law in the face of cyberattacks”. The editors of the report have brought all their experience to bear as professionals working closely with cyberattacks. Valérie Lafarge-Sarkozy and Laetitia Dage, lawyers, Myriam Quéméner, prosecutor (avocat général) at the Paris Court of Appeal and Anne Souvira, chief superintendent (commissaire divisionnaire) and officer responsible for cybercrime issues at the office of the Paris Metropolitan Police Commissioner préfet( de police de Paris), have shared their skills and experience in drawing up the report. This author has had the privilege of following its genesis and today has the pleasure of writing the preface. 4 In its first two parts, the report addresses substantive criminal law and criminal procedure. As regards the first, the reader will find an informative presentation of the offences involved. Reviewing the conventional offences available (at least those which are of general application), the report recalls that it is possible to call upon both those classified as offences against property – theft and fraud – and offences against the person such as identity theft. Emphasis is also placed, of course, on the more specific offences of attacks on automated data processing systems (ADPS), combined with certain offences relating particularly to the processing of personal data. Hence a possible reversal in outlook is outlined, as businesses that are the victims of cyberattacks on their ADPS might themselves be liable for the inadequate protection of those systems. In the discussion of the offences, a call for caution should therefore be noted, which is explicitly expressed in developments designed to establish pre-emptive rules of e-governance for businesses. But when the damage is done, one must turn to the judicial response. The second part of the report offers this some very rich developments, highly practical in tone, which will be a very helpful guide for victims of cyberattacks. The first two parts of the report are not only full of various insights and advice, but also contain interviews with specialists, which give to the whole a resolutely practical and operational twist. But the report does not end there. As a conclusion, a third part offers “10 recommendations for advancing the fight against cybercrime”. One can only hope that these recommendations will be heard by the various institutions to which they are addressed. Might one dare to formulate an 11th, a recommendation that in fact simply translates what runs like a watermark through this report, namely that digital should not make us forget basic common sense: discretion is the better part of valour – even in digital, especially in digital. Agathe Lepage Professor at Université Panthéon-Assas (Paris II) 5 TABLE OF CONTENTS PREFACE 3 INTRODUCTION 8 PART ONE LEGAL TREATMENT OF CYBERATTACKS AND ECONOMIC AND SOCIAL CONSEQUENCES 18 CHAPTER I. : Offences targeting automated data processing systems (ADPS) 19 section I Definition of ADPS and data processing 19 section II The specific case of connected devices 20 section III Different attacks on ADPS and their punishment 21 section IV Consequences for businesses of attacks on their ADPS 25 IV-1. "Theft" of personal data, industrial and commercial secrets 25 IV-2. Financial and image consequences 26 IV-3. Risk of penalties in the event of failures of security of ADPS 28 section V The need to establish preventive rules of e-governance within overall business risk management systems 33 CHAPTER II. : Traditional offences in cyberspace 38 section I Damage to property 38 section II Identity theft that damages the reputation of a business 41 6 PART TWO CYBERATTACK: WHAT JUDICIAL RESPONSE? 45 CHAPTER I. : The players and their institutional framework 46 section I The french system 46 I-1. Specialisation of the investigative services 46 I-2. The specialisation of judges 52 I-3. The role of the national agency for the security of information systems and the independent administrative authorities 56 section II International police and judicial cooperation 57 II-1. The players at european and international level 57 II-2. Texts currently under discussion 58 II-3. the 2nd protocol to the Budapest convention 59 CHAPTER II : The implementation of criminal proceedings and the means of evidence 61 section I The complaint 61 I-1.
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